John,
Everything is not always what it seems...;o)
BLOCKED BY CONGRESS, CLINTON WIELDS A PEN
nytimes.com
July 5, 2000
By MARC LACEY
WASHINGTON, July 4 -- Congress appears intent on denying President Clinton
major legislative victories in his final months of office, but White House
officials say they will continue drafting and carrying out policies,
Congress or no Congress, until Mr. Clinton's final day.
Through executive orders, memorandums, proclamations, regulations and other
flexing of presidential power, Mr. Clinton has already put in effect a host
of measures concerning the environment, health care and civil rights. And
with the presidential campaign in high gear, and the Republican-controlled
Congress not inclined to give Democrats any boost, Mr. Clinton's aides
intend to continue making policy by decree -- putting federal land off
limits to development, reorganizing government agencies, tightening
pollution control rules and pushing other measures that would otherwise
stand little chance of congressional passage.
Mr. Clinton has been especially frustrated that many of his nominees for
judgeships, ambassadorships and other posts have failed to be confirmed by
the Senate. But he is not surrendering in that area either. If Congress
fails to act on some of the nominations later this month, White House aides
say they expect the president to make recess appointments in August that
would require no Congressional approval.
"This president will be signing executive orders right up until the morning
of Jan. 20, 2001," said Bruce N. Reed, the president's domestic policy
adviser. "In our experience, when the administration takes executive action,
it not only leads to results while the political process is stuck in
neutral, but it often spurs Congress to follow suit."
Last Saturday, in a radio address on high prices for gasoline and other
fuels, Mr. Clinton said that if Congress did not act, he would use his own
authority to create a home-heating-oil reserve to help avoid shortages in
the Northeast. The House has approved such a reserve, but the Senate has not
acted on the proposal. Mr. Clinton said he had asked Energy Secretary Bill
Richardson "to take the steps necessary to create a reserve through
administrative authority if Congress does fail to act, so that a heating oil
reserve will be in place next winter."
Another goal of executive actions these days, of course, is to aid Vice
President Al Gore's presidential bid. It was Mr. Clinton who signed the
order earlier this year granting increased protection to 250,000 acres of
federal land in Oregon and Washington State. But it was Mr. Gore who
announced the creation of the Cascade-Siskiyou and Hanford Reach National
Monuments, an act that pleased environmentalists.
Over the course of his seven and a half years as president, Mr. Clinton has
signed an average of about one executive order or other policy-making
declaration a week, or 450 in all, according to the Office of Management and
Budget. That far exceeds the executive actions taken by former Presidents
George Bush and Ronald Reagan, whose orders riled Congressional Democrats
just as much as Mr. Clinton's have angered Republicans on Capitol Hill.
"I think what this president is doing is pretty typical when Congress is
controlled by the other party," said Louis Fisher, who has studied executive
authority for the Congressional Research Service. "Certainly, Nixon did the
same thing."
But the fact that presidents in both parties have engaged in the practice --
President George Washington, a Federalist, issued the first one in 1793
dealing with American neutrality in the war between Britain and France --
does not assuage the frustration on Capitol Hill.
Lawmakers argue that the Constitution gives them, not Mr. Clinton, the
authority to pass laws.
"Even though I disagree with the president on many of the issues, the bigger
concern is the erosion of the foundation that our founding fathers put in
place," said Senator Chuck Hagel, Republican of Nebraska. "It's very
dangerous for a president to implement policy by essentially debasing the
constitutional structure."
Republicans have complained most fervently about Mr. Clinton's liberal use
of the Antiquities Act of 1906 to protect "objects of historic and
scientific interest." The protests began in earnest in 1996 when Mr. Clinton
set up the 1.7 million-acre Grand Staircase-Escalante National Monument in
Utah, which was opposed by Republican lawmakers in the state. Recent
presidential directives protect land in California, Arizona and other
states.
Mr. Clinton points to his predecessors to justify his approach. Former
President Jimmy Carter, for instance, signed an order creating a national
monument in Alaska that exceeded 53 million acres. Mr. Clinton now holds the
record for total land set aside in the lower 48 states.
On Friday, asked about whether he was overstepping his role, Mr. Clinton
delivered an impromptu history of the executive branch that compared his
actions with those of other presidents. Mr. Clinton acknowledged that the
office he holds has grown over the years, but he said many of his
predecessors have advanced the power of the presidency without interrupting
the constitutional balance envisioned by the founders.
Mr. Clinton noted that Thomas Jefferson had agreed to the Louisiana Purchase
for a sum that was roughly the total annual budget for the federal
government at the time. "Can you imagine what the Congress would say if I
said I want to buy a little land but it will only cost $1.8 trillion?" Mr.
Clinton said with a smile. (In fact, the treaty with France to cede its vast
territories to the United States had to be ratified by the Senate, and
Congress passed a number of laws in 1803 to carry out the transaction.)
No consensus has emerged on Capitol Hill on whether future presidents ought
to be reined in. Legislation limiting the acres that presidents can protect
with the stroke of a pen cleared the House but not the Senate. Bills
requiring Mr. Clinton to justify his executive orders to Congress or win
subsequent approval from lawmakers have also stalled.
Just once has a court ruled that Mr. Clinton has overstepped his bounds,
after he signed an order in 1995 that banned awarding federal contracts to
employers that permanently replace striking employees. Several members of
Congress filed suit to block another order to protect rivers, but a federal
court ruled that the lawmakers' injury was "clearly institutional rather
than personal." In another instance, the House voted in 1998 to deny money
to carry out an executive order dealing with when the federal government
could get involved in state and local matters. Mr. Clinton later withdrew
the order.
Executive actions can be undone just as quickly as they were put in effect.
But White House officials say a future president would face political
constraints against reducing protections on federal lands. On other matters,
Mr. Clinton himself showed how quickly presidential declarations can
disappear.
Days after Mr. Clinton took office in 1993, he told Donna E. Shalala,
secretary for health and human services, to overturn former President Bush's
moratorium on federal financing of research involving fetal tissues from
induced abortions.
Lawmakers have little doubt that the next president, whether it is Mr. Gore
or Gov. George W. Bush of Texas, will continue the pattern of past
presidents.
"I do not believe that the romance with the executive order is restricted to
the Clinton White House," said Representative George W. Gekas, Republican of
Pennsylvania, who has held hearings on the issue. "Every president has used
them.
Some, though, have used more restraint than others."
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